The debate over a Navajo-Hopi water settlement rages on

While people everywhere in the drought-stricken Southwest pray for rain, powerful energy and mining corporations, politicians, grassroots citizens and tribal-government leaders are praying for their share of water from the Little Colorado River.

Katherine Benally, Navajo Nation Council delegate representing Dennehotso, Chinchilbeto and Kayenta, speaks before officials representing 18 chapters of the Western Navajo Agency Council. At the June meeting in Luepp, Ariz., they discussed the Navajo Hopi Little Colorado Water Settlement Act 2109 but did not vote on it. Photo by Sonja Horoshko

But no one can agree on who should get how much, and the latest proposed settlement remains hugely controversial.

After 33 years of litigation, the Navajo and Hopi tribes are being asked to approve an agreement that would settle their indigenous claims to water rights on the river. So far, neither tribe has granted that approval.

Arizona Sen. John Kyl set off a firestorm of debate when he introduced the Navajo Hopi Little Colorado Water Settlement Act, SB 2109, in Congress on Feb. 14. It has been the focus of intense analysis ever since, partly due to the efforts of grassroots organizations.

The settlement act, which is linked to the Navajo Hopi Little Colorado Water Settlement Agreement, has been brought to the two tribes for approval by Kyl and Arizona Sen. John McCain, along with 30 parties to the settlement and 3,000 water-users with Arizona ties.

The act cannot move forward in Congress unless the agreement is approved by the Hopis and Navajos.

Navajo President Ben Shelley has committed his support to the agreement and the act (and its companion bill, HR 4067), saying the measures will improve the quality of life for Navajo people. He envisions Navajo families raising their children and grandchildren with running water in their homes.

“Securing our water rights is essential to making this vision a reality,” he said in a press release.

But Shelley has been under fire at recent public forums presented by him, the Navajo water commissioners, and Stanley Pollack, assistant attorney with the Water Rights Unit of the Navajo Department of Justice and the lead litigation attorney. Despite the promise of future infrastructure and unlimited water use from the Little Colorado River Basin, support for the agreement was slim while opposition grew stronger at each meeting.

Grassroots organizations and community members opposing the settlement say it favors Arizona corporations such as the Salt River Project and Central Arizona Project, both linked to the Navajo Generating Station, over the needs and rights of the tribes. Indigenous water rights are governed by federal law, treaty obligations and the landmark 1908 Winters Doctrine, which says that Indian tribes have the right to enough water to fulfill the purposes of their reservations, and that their water right dates from the establishment of the reservation.

The Navajo-Hopi settlement provides infrastructure to deliver water through two pipelines on reservation land, reaching communities with no current access to delivered water. It also, according to Pollack, gives the tribes “all the water that falls on it [reservation land], rises up from it and flows through the LCR river basin.”

In Shelley’s statement of support he warned the people, “If we don’t support the LCR settlement, we continue our 33-year litigation in court without an end in sight. And when we do finally reach that end after spending a great deal of money and time, we may be left with a fraction of the water proposed in the LCR settlement. Besides having less water, money for valuable water infrastructure would be lost, making usage of our water rights claims difficult. Without this settlement, we leave the LCR issue to be resolved by our children and grandchildren.”

Carrots in the pipelines

Although the 2012 water settlement resembles the 2010 water settlement passed by the 21st Navajo Nation Council late that year, a significant piece is missing. The 2010 version included a third pipeline that would have brought water to the western reservation. Cameron, Gap Bode Way, Coalmine – all of which are Bennett Freeze chapters and uranium-mining communities – would have received much-needed watering points.

But after the 21st council delegates voted to support it, Kyl dropped the $800 million project. According to Pollack, “Kyle didn’t even try to get it funded. He said it was too expensive and withdrew the bill.”

Now, in 2012, the western pipeline has cut out of the settlement act, replaced with a promise to fund a feasibility study and fill the pipeline with reserved water from the main Colorado River if the funding is found someday to build it.

One sticking point for many citizen is the fact that the 2012 settlement act requires the tribes to give Peabody Western Coal Company, the Salt River Project and other owners of the Navajo Generating Station tens of thousands of acre-feet of tribal water annually, without compensation.

A bone-dry stock pond near Gray Mountain in the Navajo Nation. The promise of a feasibility study for a third pipeline in the Navajo Hopi Little Colorado Water Settlement Act could get the pipeline built if federal funds become available in the future if the settlement agreement is passed by both tribes. Photo by Sonja Horoshko

It also requires the tribes to extend the Peabody and NGS leases to 2044 without regard for past and continuing impacts to health, water supplies, water quality and damage to the Navajo Aquifer (N-Aquifer), as a condition for receiving the two domestic water pipelines and the feasibility study for a third.

Eighty percent of the power created at the Navajo Generating Station in Page, Ariz., is used to pump water from Lake Havasu to Tuscon agribusiness. Peabody Coal is located on Black Mesa in northernmost Arizona, above the N-Aquifer, which supplies the water used to wash the coal.

Complicated votes

Speaker Johnny Naize introduced the legislation to begin the formal process of discussing the water-settlement agreement so that, “the supporting and opposing individuals and parties can be brought to the table for a healthy dialogue,” he said in a press release. “As the Speaker of the Navajo Nation I feel it is my responsibility to introduce this legislation so that the Nation can decide on the water-rights settlement.”

Assuring the Diné citizens that the process will be transparent and fair, he wrote, “The conversation has taken many forms, positive and negative, but … it has been healthy and now, should move to the next step.”

The language in the legislative process meanders like flowing water in a riverbed. One piece of legislation opposes the settlement act, while another was introduced to approve the settlement agreement. The Diné people have been tracking the information on social networks and in group emails. They work to understand the nuances, stay vigilant about voicing their positions, and share facts and research with each other as well as their own central government.

On June 15 Katherine Benally introduced legislation to the Navajo Nation’s 22nd Council Naa’bik’iyati’ Committee opposing the settlement act. The NABI committee, composed of all 24 council delegates, voted 13-0 to approve the measure opposing SB 2109 and HR 4067, with 11 absent.

Delegates listed several reasons to oppose the act, including the extension of leases to the Navajo Generating Station, the unclear waiver of water rights, the limitation on the Navajo Nation’s ability to put lands into trust, and the limitation on the nation’s ability to market or lease its water.

One week later, the Council Resources and Development Committee unanimously voted to reject Speaker Naize’s legislation approving the Navajo Hopi LCR Agreement.

The following day, June 22, the NABI committee met again, voting 15-3 to reject Naize’s legislation approving the agreement. Those opposed included Naize voting against his own legislation. The three delegates supporting the agreement, George Apachito, LoRenzo Bates and Danny Simpson, all represent chapters in the eastern part of the reservation. Five delegates were absent during the vote.

The council chambers were packed with Diné people, most opposing the legislation. Their campaign resulted in hundred of comments, 350 pages of petitions signed by Navajo citizens opposing the legislation, and a statement by the Navajo Human Rights Commission urging leaders to comply with the United Nations standard of “free, prior and informed consent” and to hold a referendum on the agreement.

Also in the audience were former Chairman Peter MacDonald, former President Milton Bluehouse, former President Peter son Zah, and former Chairman Leonard Haskie.

Debating the value

Jack Utter, a professor of Indian water law at Northern Arizona University and an expert in forest-resource and wild-river management, came to speak at the NABI committee meeting. He is a widely-known Indian-Country author, educator and lecturer and works for the Navajo Nation. He is married to a Navajo woman.

In an email to the Free Press, Utter said the Resources Committee requested that he present before council, if the speaker requested it, which Naize did in writing. The speaker allowed him the full two hours he needed for his presentation.

In his introduction he clearly states that he was presenting on behalf of his family, his in-laws and clans, elders and future generations, and not in his capacity as an employee of Navajo Water Code Administration.

His presentation highlighted additional scientific and legal facts designed to help the tribe understand exactly what they will and won’t get if they agree to the settlement.

Pollack (Free Press, May 2012) says that the tribes will have unlimited use of all the water in the C-Aquifer, located in the southwest corner of the reservation. But according to Utter’s documentation, “The Arizona Department of Water Resources says on its website that north of the LCR, the C-Aquifer is too deep to be economically useful, or is unsuitable for most uses because of its high concentrations of total dissolved solids. For the most part, that’s the portion that overlaps the Navajo Nation.”

Fleshing out corporate use of the LCR water, Utter showed the Central Arizona Project canal running 336 miles from Lake Havasu through Phoenix to Tucson and beyond. It is powered by NGS.

“It is not ‘Navajo’ either in ownership or who uses the power. NGS uses 34,100 acrefeet per year, which is 34 to 44 million dollars’ worth of water for free, worth $1 billion to date,” Utter said at the committee meeting.

Most of the audience appeared surprised to learn about the Arizona Water Banking Authority, which builds water banks by sinking water into the desert for later use, trading, selling or leasing. “Now there are seven banks along the 200 miles of the CAP canal … creating a hundred-year supply for 200,000 new home lots for maintaining Arizona’s economic growth,” Utter told the audience.

The Diné Water Committee, present during the entire meeting, posted the proceedings throughout the presentations and the vote on their websites. At the close of the meeting it was announced that the final decision on the water settlement would be made on June 27 in a special session called by Speaker Naize.

Dispute over Hopi decision

Meanwhile, the Hopis were also scrutinizing the settlement. It is unclear at this time whether they passed the settlement.

The Tucson Sentinel reported on June 22 that “Hopi lawmakers gave new life to a congressional plan to settle the tribe’s water claims, voting 8-7, with Chairman [Le- Roy] Shingoitewa casting the deciding vote, to work with Congress to pursue Hopi water rights and build pipelines to reservation communities in exchange for the tribes waiving their claims to the river water.”

But a press release dated June 25, from former Hopi Chairmen Ben Nuvamsa, Ivan Sidney and Vernon Masayesva, describes their reaction to reports from Shingoitewa that the Hopi passed the settlement act.

According to the former chairmen, “Hopi Tribal Chairman LeRoy Shingoitewa and Council Representative George Mase have been giving out false information that the Hopi Tribe approved Senate Bill 2109, the Navajo-Hopi Little Colorado River Water Rights Settlement Act of 2012, when in fact, the Hopi Tribal Council, by a vote of 11 for, 4 against, and 0 abstentions, rejected the Kyl bill on June 15, 2012. Over 100 tribal members witnessed this historic event.”

The chairmen allege that Shingoitewa refused to sign this resolution, forcing the former elected tribal leaders to file a formal complaint to the Hopi Tribal Council demanding Shingoitewa’s immediate removal.

“Shingoitewa convened an illegal tribal council meeting on June 21, 2012, to force passage of a council resolution to ‘endorse’ Senate Bill 2109. This he did out of total disrespect for the Hopi and Tewa people’s rejection of the Senate bill. Upon hearing of this action, many tribal members are angered and are demanding immediate removal of Hopi Chairman Shingoitewa and George Mase.”

Kyl and McCain have not responded to Free Press email inquiries regarding which Hopi vote they will accept as the official position of the Hopi Tribe. The Free Press left a message with Chairman Shingwetewa’s staff asking if Kyl and McCain have endorsed the June 21 council vote. As of press time there has been no reply.

Special session

Speaker Naize in a last-minute announcement cancelled the June 27 special session in which the Navajo council was to make the final decision on the water settlement because there was not the required number of council delegates’ signatures needed to schedule the special session.

“I apologize for the late cancellation of the special session but the Navajo Nation Code is the law of the Navajo Nation and it cannot be circumvented despite the fact that the water-rights settlement is a high profile issue,” Naize stated.

Naize apologized to Diné citizens who had made plans to attend the special session and encouraged citizens to continue their participation in all matters related to the water-rights settlement.

Naize was trying to reschedule the special session to vote on the water settlement for Thursday, July 5, at 10 a.m., in council chambers in Window Rock, if 13 delegates sign a petition for the session. The next week-long council session is scheduled July 18.